SHABANI HAMISI KAMBI 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 27114 OF 2023 (Originating in Civil Case No. 06/2022 from District Court of Temeke) BETWEEN SHABANI HAMISI KAMBI.............................................................APPELLANT VERSUS SEIF YUSUPH UNYAGO...................................,.......................... RESPONDENT JUDGMENT Date of Last Order: 04.09.2024 Date of Judgment: 20.11.2024 NGUNYALE, J. Before the trial court, the appellant sued the respondent herein for breach of contract, where by on 10th September 2021 the parties entered an oral agreement for purchase of 120 tons of lentils (dengu) valued 125,546,000/= on credit. The respondent only paid the appellant Tsh. 36,180,000/= he promised to pay the remaining amount but never heed to the promise and later on 24th November 2021 they decided to deduce their agreement into writings where the respondent admitted the debt illtd promised to pay it on 25th December 2021 but he never paId I ollowing the failure to pay, the appellant filed Civil Case No. 06/2022 llc:fore 1-emeke DistrIct Court and in the course of the proceedings appllecl Il )r third party procedure and the court allowed his application by Joinln{,I 1\'ll-. NicFlolaus John Mushi. The matter was heard ex-parte agaInst MI l~,llc:holaus John MusIll and after full trial judgement was entered in fav( IUI I )f the appellant herein where the court ordered the respondent to pay I h( ' III lpellarlt the surn of' Tshs 89,438,000/= only once he is paid by the thll (’I I)ilrty NICHOLAUS JOHN MUSHI. The appellant was not amused by Lhc' llldgement and decree of the trial court particularly the order of being jlllid with a condition that upon being paid by the third party hence 11ll'i III)peal on the ground that: That the trial magistrate erred in law and fact by ordering an ordel that is not executed. llle hearing of the appeal was by way of wrItten submissions, l„l'lt. Ill)pellant was represented by Mr. Godfrey Francis Alfred, advocate Wl’Illct llle respondent had the service of Mr. Mutakyamirwa Philemon, Advocate ';llbmitting in suppolt of the appeal, Mr. Godfrey submitted that the tllal lllurt judgement wlllch was entered in favour of the appellant is IIII ''xecutable for the reason that it contains a condition that the respondonl vvIII pay the appellant after being paid by the Iird party one NIche)Ii:ILI'I John Mushi. He added that the appellant has no any means to know as to when the 3’d party will have paid the respondent but furthermore, the appellant had no any agreement with the 3'd party. He invited the court to set aside the decision of the trial court. To substantiate his position, he referred the cases of Kibo Hotel Kilimanjaro Limited versus Consolidated Holdings Corporation and another, Civil Application No. 105 of 2005, Prada Enterprises Co. Ltd versus Joyce Alex Khalid & Others, Civil Application No. 279/01 of 2020 and the case of Patel Trading Co. (1961) Limited & Another versus Bakari Omary Wema t/a Sisi Kwa Sisi Panel Beating Enterprises Ltd, Civil Application No. 19 of 2014. On his rebuttal submissions, Mr. Mutakyarnirwa submitted that, exhibit Pl was the agreement between the appellant and the respondent which was entered on 25th December 2021, the payments were tO be done upon happening of a future event where under clauses 2, 3 and 4 payment to the appellant depended on payment of the third party one Nicholaus John Mushi. He added that the contention by the appellant that the trial court judgement and decree are inexecutable, then his suggestion is to the extent that the contingent contract is impossible to be implemented and the contract entered on the 24th November 2021 is void and the void contract cannot be enforced by the court. And if the said contract is found to be valid then the plaintiff claims which are based in clause no. 2, 3 and 4 of exhibit Pl are still premature as the future event is yet to happen. He further argued that parties are bound by their agreement which they freely entered and thus the trial court was right to give the judgment with the condition as it was in exhibit Pl. He invited the court to find the appeal with no merit and continue to dismiss the same with costs. In his rejoinder, Mr. Godfrey submitted that the respondent wrongly interpreted exhibit PI for the reason that the appellant did not file the case for specific performance of the agreement entered through exhibit PI but the appellant claimed against the respondent for payment of the purchase price of the dengu and his claim was essentially based on the oral agreement they entered on 10th September 2021. Appreciating the submissions of both parties this court is invited to determine the merits of the appeal. As the ground of appeal stand that the trial magistrate erred in law and fact by ordering an order that is not executed. Taking into account the submissions from both parties and this being the first appellate court, this court is mandated to re evaluate the evidence on record so as to find out as to whether the trial Magistrate was right to order for payment to the appellant on In that he will be paid upon the respondent being paid by the third party one Nicholaus John Mushi. Ttlroughout the submissions, there is no doubt that the appellant and the respondent had both oral and written agreement and that the respondent is owed by the appellant Tsh. 89,438,000/= following his default to pay for the lentils. It is reflected from the trial court proceedings and judgement that both parties appreciate that they first entered an oral agreement on 10th September 2021 and upon failure of the respondent to honour the terms of the agreement they deduce their agreement into writing, the agreement was admitted in court as exhibit Pl. In law contracts may be formed by the parties signing a written document which embodies all its terms. However, a contract can also be entirely oral/verbal or partly oral and partly in writing. A valid contract whether the written or verbally made, must contain these essential elements; offer and acceptance, existence of consideration, capacity to enter into a contract, intent to enter into the contract, creation of a binding relationship and one more it should be enforceable. Putting an eye on the written agreement between the parties i.e exhibit Pl suggests that the agreement entered by the parties its performance depend on occurrence of a future event, this is observed under clause 3 and 4 of the agreement =W where the parties agreed that: KWAMBA MDAIWA anatamka kwamba ataanza kulipa fedha anazodaiwa na MDAI kuanzia tarehe 25/12/2021 kama MDAI alivyoahidiwa na NICHOLAUS JOHN MUSHI 4. KWAMBA fedha zilizobaki zitaIipwa kadiri ambavyo mdaiwa atakuwa anaJipwa na NICHOLAUS JOHN MUSHI". With the above terms in the written agreement, I agree with the trial Magistrate that the agreement was a contingent agreement, as it has been provided for under the provisions of section 31 of the Law of Contract Act, Cap 345 (R.E 2019) the LCA). The enforceability of a contingent contract is provided for under the provisions of section 35(2) of the LCA which provides that: "(2) A contingent contract to do or not to do anything if a specified or uncertain event does not happen within a fixed time may be enforced by law when the time fixed has expired and such event has not happened, oc before the time fixed has expired if it becomes certain that such event will not happen!’ Reading the wording in the above quoted section above and the evidence on record it is obviously that the future event (that is payment to the appellant pending the respondent being paid by the third party one Nicholaus John Mushi) has became impossible since the respondent never heed to the terms of their agreement as indicated under exhibit Pl that he could start paying the appellant on 25th December 2021. nus, following the failure of the terms of their agreement and as it is hard for the appellant to take control as to whether the respondent has been paid by the third party one Nicholaus John Mushi who was not even a party to their agreement, the respondent should be responsible for the debt by himsel£ It is a trite law that once a party is awarded by the court he is entitled to benefit from the award and this is by means of executing court decrees. As there is no doubt that the respondent is owed by the applicant Tshs. 89,438,000/=. 1 think it is prudent for the respondent to be responsible for the debt and pay the appellant. In the event, the appeal is allowed with costs and, I hereby invoke the revisional powers vested in this court to nullify the order of payment to the appellant upon being paid by the third party and substitute the same with an order directing the respondent to pay the balance of Tshs. 89,438,000/=. It is so ordered. Dated at Dar es Salaam this 20th day of November, 2024. D. PWunyal JUDGE 7 Judgment delivered this 20th day of November, 2024 in presence of the appellant in person and Mr. Ibrahim Kibanda for the respondent. JUDGE